On August 28, Illinois filed a brief in Gill v Scholz, 19-1125. This is the case that challenges the Illinois law that requires independent candidates for U.S. House to submit a petition of 5% of the last vote cast. The state’s brief says that two independent candidates succeeded in recent years for U.S. House: one in 2018 and one in 2010. But the state’s brief does not say that no one challenged either petition. In Illinois in 2010, a candidate who submitted even one signatures was allowed to be on the ballot, if no one challenged. In 2018 the policy was somewhat different. A candidate who submitted 10% of the requirement and who was not challenged was automatically put on the ballot, making the 2018 petition, in effect, a one-half of 1% petition (if the candidate was lucky enough not to be challenged).

Therefore, the two examples the state cites do not support the concept that a 5% petition is reasonable.